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May 27, 2010

Rand Paul, Race, and the Constitution

A while back Grim asked a fascinating question in the comments section here at VC. He returns to this question in a must read post:

Racism, as a special evil with a unique history, has required intense Federal intervention to mitigate. No other evil in our national fabric is of the same type; the tools we built to break these chains are too strong to use against lesser evils.

Mr. Paul is in a difficult position, and I feel for him. He has two deeply held principles that are in conflict. So do I, though they are different principles: Cassandra and I were talking the other day about whether a society with respect for women requires a powerful and intrusive state. A state that cannot rip your family to shreds cannot protect women from abusive husbands. A state that can rip your family to shreds is prone to evil, because power corrupts, and that kind of power will be misused. Our own case shows that it is misused regularly.

This is a potentially irreconcilable conflict in principles of equal weight. Perhaps it is possible to find a way to protect the rights of women without an intrusive state -- perhaps we can find a way to do it through individual action. In the absence of such a method, though, I'm in a difficult position. I believe the modern state is far too strong, and we desperately need to pull its fangs. I also believe that women's interests are our duty to protect, and defend, and that men who do not love and defend women are no men at all.

Let's unpack Grim's argument. He argues that racism is such a pernicious problem that it requires the use of methods that are too strong to use in any other context. He also states that it is the only evil of its type. So I suppose my first question would be, "How does sexism differ from racism?" Why is racial discrimination so much worse than sexual discrimination?

Before we attempt to answer that question, we should define our terms. Many different definitions of racism and sexism exist. For the purposes of this discussion we will use Merriam Webster's definition of racism:

1 : a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race 2 : racial prejudice or discrimination

...and sexism:

1 : prejudice or discrimination based on sex; especially discrimination against women 2 : behavior, conditions, or attitudes that foster stereotypes of social roles based on sex

By Merriam-Webster's definitions, I am not a racist but am definitely a sexist. I am convicted by my non-binding and admittedly heteronormative belief that gender roles have some value (and are more a function of real differences between men and women than of jackbooted patriarchal misogyny).

That said, what is the nature of the harms caused by racism and sexism? Are these harms identical? How do they compare in scope and severity?

Well, first of all there are no laws forcing whites and blacks to marry, live in the same household or neighborhood, or socialize with each other. So I would argue that the harms caused by racism are mostly limited to the public sphere; to jobs, schools, and interactions with people outside our immediate families. We can, if we choose, get away from people of other races simply by excluding them from our intimate social circle.

Sexism, on the other hand, has both a public and private aspect. Women would have a very hard time totally excluding men from their intimate circles: we have fathers, boyfriends, husbands, brothers.

Ergo, while racial discrimination occurs primarily in the public sphere, sexual discrimination has the potential to occur both at home and at the office. But there is another difference. The physical and psychological differences between men and women are greater than the differences between blacks, whites, and orientals. There is at least some logic to disparate treatment based upon sex.

It would seem that sexism is harmful over a broader range of human interactions because it can occur both in the private (home/family) sphere and in our public (job/school/commercial) dealings with other humans. Women have little or no ability to "get away" from it but there's an important caveat. Though we can't choose our parents, women are no longer forced into marriage against their will. This is important, because a woman who is harmed by sexism in the private sphere has very likely chosen to associate with her sexist 'oppressor' (unless, of course, we're talking about a parent/child relationship). An interesting case of unavoidable private sphere sexism is the treatment of American Muslim girls whose parents treat them in ways that would be unlawful "but for" the parent/child relationship. I am not sure what Grim would have the government do here. Should the government, for instance, be able to prevent Muslim parents from genitally mutilating their daughters?

We have two conflicting values to balance here: freedom of association and freedom from government interference in our private lives. If I understand him, Grim believes racism is so bad that it justifies an otherwise objectionable level of government interference but does not think sexism rises to that level. Here, I'd like to interject a few comments from Ann Althouse. Here's the first:

[Rand] likens private property rights to free speech rights. If you care about free speech rights, you defend even the people who say horrible things — Nazis, the KKK, etc. That's standard constitutional law doctrine. In Rand's view — and in the view of many libertarians — property rights work the same way. So you could have this horrible racist restauranteur who excluded black people, and the government would have to leave him alone, just as the government couldn't do anything about it if a white person had a dinner party at his house and only invited his white friends.

It seems to me that several things are being conflated here, so I'd like to step back for a moment and look at the purpose of the Constitution. The Constitution doesn't really protect us from each other and (until the 14th Amendment) it wasn't really meant to protect us from state and local governments. Originally, it granted limited powers to the federal government. Congress is a part of the federal government and it was Congress which passed the Civil Rights Act of 1964. Freedom of Association is not explicitly protected by the Constitution, but (and here I'm relying on Wikipedia) nonetheless SCOTUS, with its laser like vision, eventually espied the right of free association lurking behind a penumbra:

Although it is not explicitly protected in the First Amendment, the Supreme Court ruled, in NAACP v. Alabama, 357 U.S. 449 (1958), freedom of association to be a fundamental right protected by it. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court held that associations may not exclude people for reasons unrelated to the group's expression. However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. Likewise, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court ruled that a New Jersey law, which forced the Boy Scouts of America to admit an openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free association.

Clearly, the Court thinks neither state, local, or federal governments have the right to force us to associate with others against our will. Nor can we be prevented from such associations. What a relief.

So my first question to Ms. Althouse would be, "What's the difference between a restauranteur and the host of a private dinner party?" Do either receive public funds? Why is it acceptable to force a private businessman who receives no public funds to serve dinner to someone who is black but not to force a host to serve dinner to someone who is black? Walter Williams has a few thoughts on the subject:

Suppose you want to deal with me but I don't want to deal with you. Should I be forced to? You might ask, "What are you talking about?"

Here's a short list. Suppose you want to marry me, but I don't want to marry you. Or, suppose you want to play tennis with me, but I don't want to play with you. Or, suppose you want to be in my club, but neither my fellow club members nor I want you. The question is, how much do we Americans value freedom of association? Keep in mind that freedom of association is a two-way street -- it also implies freedom not to associate.

Suppose a beautiful woman wants to date me, but I don't want to date her. It might be for a good reason, bad reason or no reason at all. Should I be free not to deal with her? Similarly, you might want to come to my party or enroll your children in my private school, but I don't want to deal with you. My refusal might be for any arbitrary reason, including your race, sex or religion, or because I don't like your looks. Should the government force us to associate with those we wish not to associate? Alternatively, should government forbid us from associating with those with whom we wanted to associate?

He concludes:

Isn't there a general principle here? Namely, that if one cherishes freedom of association, is there a logically consistent argument for permitting it in some areas of our lives and not in others? Should employers be forced to hire those they prefer not, or landlords forced to rent to persons they prefer not, or Boy Scouts to admit homosexuals when they prefer not?

One might be tempted to answer by asserting that arbitrary discriminatory association choices in marriage don't have the important socioeconomic effects that other discriminatory choices have. That's dead wrong. Race and income are highly correlated. Whites have higher income than blacks. Only about 5 percent of all marriages are interracial. That means whites marrying other whites makes the income and education distribution more skewed than it would be if there were more interracial marriages. I imagine that most of us would be horrified by the suggestion of mandated marriage diversity.

If an activity is publicly financed, then arbitrary discriminatory association should be prohibited. That would apply to, among other things, public libraries, schools and universities. Private libraries, schools and universities should have complete freedom of association, whether it's discrimination for or against a particular race, sex, religion or any other trait upon which it chooses to associate. Interestingly, Americans who support racial preferences should be the strongest supporters of privatization, but they're not.

It's here that the second part of Althouse's comment kicks in:

A few years ago, I was at a conference with libertarians, and I was confronted with exactly this point of view. I expressed my concern that they were putting an extreme and abstract idea above things that really matter in the world. I challenged them — in what I thought was a friendly conversation — to explain to me how I could know that their commitment to the extreme abstraction did not, in fact, have an origin in racism. Which came first, the proud defense of private property or the shameful prejudices that polite people don't admit to anymore?

Is the purpose of the Constitution to protect "things that really matter in the world"? Or is the purpose of the Constitution to grant us certain rights which cannot be abridged by federal, state, or local governments and furthermore, to spell out the powers granted to various tiers of government?

How does Ms. Althouse know that Walter Williams' defense of freedom of association does not, in fact, have an origin in racism? If you say, "because he's black and you're white", isn't that (going back to Webster-Merriam) a textbook example of racial prejudice or discrimination? Why should anyone's personal opinion of my subjective motivations make any difference when we're discussing a Constitutional right? Or do Constitutional rights depend on race?

In a way, federalism (deader than a doornail though it may be) has a lot in common with free market principles. It's interesting that we live in an age where it is easier than ever before to move to a different state. Barriers to travel are lower than they have ever been, and yet we seem oddly determined to homogenize the 50 states. I would think that as it gets easier to move between states, our tolerance for different lifestyles and levels of government control would increase but the reverse seems to have happened.

Imagine for a moment that we could turn back time and erase the creeping federalization of almost everything. States would differ widely in the degree to which they respected or restricted civil rights and matters like abortion. What would happen to states that chose to protect complete freedom of association? To states that refused to grant favored status to protected classes? Would they gain or lose population as a result? Would we wish to live in such a country?

In answer to Grim's question, I believe that due to the biological differences between men and women and the special role women play in bearing and raising children, some government protection of society's "weaker" members is necessary. I also think we've gone a bit too far in that direction.

I think women must have the ability to redress violations of basic rights via some other mechanism than violence or aggression, but that's hardly surprising because I think societies function better when disputes are resolved by the rule of law than when they are resolved by brute force. A fairly uniform legal code (along with the means to enforce it) is the hallmark of a civilized society.

I also think the law should be as race- and gender-blind as humanly possible. Simply writing race and gender neutral laws, however, can't force fallible human beings from considering race and gender in the enforcement of those laws. That's a problem that will always be with us. I think the best we can do is to identify some common and minimal set of rights that apply to every person and then write the best laws we can to protect them. Even the most perfect process can't eliminate the influence of human foibles.

Discuss amongst your ownselves :p

Posted by Cassandra at May 27, 2010 08:19 AM

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Comments

Historically the federal government stepped in. But it wasn't the only solution around.

Posted by: Ymarsakar at May 27, 2010 01:26 PM

A very short introduction to the many complex issues here:

What I'm talking about with regards to racism is its historic aspect. I think the difference with sexism -- meaning sexism in the negative sense, not the positive recognition that women and men are different and that this is OK -- is clear if you view it in that light.

Were women able to redress the lack of voting rights? Yes, they did so even without having had the voting rights to start with. Were blacks able to do the same? No -- even after the Civil War had been fought, and the Federal government's massive power brought to bear, Jim Crow laws effectively disenfranchised blacks.

Dr. King's social movement, similar to the suffragettes in some respects, met not with success but with state-and-local level government brutality. So, again, the massive machinery of the Federal government had to be brought to bear to force the issue.

Is that a good thing? I'd say it is. However, is that the precedent we should now accept as normal for state/Federal relationships? Certainly not! Liberty is maximized when there is tension between the branches and levels of government; checks and balances are good between the states and the Federal government even as it is between the executive and the legislative branch.

What we ought to do, then, is recognize that massive level of intervention as a one-off, acceptable exception to general Constitutional practice. What we shouldn't do is use it as a precedent to allow Federal intrusion into every other aspect of life, whether or not those areas worked well in the past.

I don't think I believe that racism today is currently bad enough to justify a very high level of Federal involvement at all. I am thinking of the precedent, though: it seems right that we really did need those tools for that one issue, but I think we should forswear them for any others. Nothing else rises to the level of slavery and Jim-Crow-style repression, both of which involved the states acting willfully to suppress the liberty of blacks through violence.

(And indeed, through "the rule of law." Jim Crow was law; and before the Civil War, slavery was law. There is no difference, to my mind, between "law" and "violence." The question is always whether the law -- or the violence -- is justly and rightly done.)

Posted by: Grim at May 27, 2010 02:31 PM

By coincidence, Maggie's linked today to an interesting WSJ article today about evolution and specialization, which touches on gender specialization and also talks about the importance of trade in goods and ideas, including the massive effect of globalization and the internet. Lots of food for thought.

http://online.wsj.com/article/SB10001424052748703691804575254533386933138.html

Posted by: Texan99 at May 27, 2010 03:15 PM

Now, to address a couple of specific points you raise:

1) Would we wish to live in a country with a much greater level of civic variety? Questions like this always have to be put into context: as opposed to what other country?

If we consider a country in which Federal intrusion continues for a few more years -- say, one in which Obamacare does not get repealed -- we may find that prospect highly preferable to the country we're about to get.

A country without the massive levels of Federal involvement would be a country without the massive public debt. It would be a country with more small farmers, as most of the industrialization of farming is driven by Federal policy (as T99 was pointing out, rightly, at the Hall the other day). It would have more small business, as most of the bars to entry to the market are now Federal regulations.

Would it be less free and fair? In those respects, it would be more free; and as you point out, if you didn't like your particular state's take on things, you could move.

I'm envisioning not a collapse of the Federal government here, but a restriction of its powers to all and only those powers that are specifically granted it by the Constitution. We'd still have air traffic control and Federal highways; we would not have Federal standards saying that you can't sell your milk to your neighbor. You might pass a state law that said so, but then again, you might not.

2) Circumcision, male and female, is an interesting question. I'm morally opposed to the practice in both the male (Jewish & some Christian) cases, and the female (Islamic) cases. That is, I oppose having it done forcibly to children; I don't oppose someone seeking it out as an adult, if they feel it is important to them. I think it's a terrible thing to do to a child. The female case is worse, I've read, but I think it's improper in both cases.

Now, the question is how far do I endorse government authority to halting the practice? That's tricky. I'd certainly be opposed to a law mandating the practice (as we used to have, re: male circumcision)! More, I'd oppose that law on the grounds that it was none of the government's business, that it was an unacceptable intrusion of the majority's religious opinions on the populace. That's a decision the state has no right to make for my family, and that the majority has no right to impose on me.

Should that principle work the other way? If so, we should we rely more on moral suasion, perhaps coupled with compromise measures designed to mitigate the harm while the suasion takes place, e.g., the 'nick' option that certain doctors are discussing now? If not, then I need a good explanation of why I think it's OK for me to impose my moral and/or religious opinions on Muslims, exactly where I would resent their opinions being imposed on me.

The Sunday blue laws are a less-intrusive and offensive case of this; I resent the Baptists telling me that I can't buy beer of a Sunday. I wouldn't pass a law requiring them to buy beer on Sunday, or any other day; so I think the principle is coherent. What I want to say here is incoherent: that it's OK for me to ban the practice for moral/religious reasons, but that it would be wrong for them to require it for similar reasons.

Perhaps there is a principle that is workable here, along the lines: it is always OK to increase freedom, but restricting it requires a stronger test? Yet that doesn't work either, because I am not increasing their religious freedom; I'd be restricting it.

Posted by: Grim at May 27, 2010 03:28 PM

While I typically respect Grim's opinions, I must disagree here. Federal intrusion is NEVER a good thing. The power to intrude, in whatever circumstances one deems are necessary, can only occur at the expense of the liberty and rights of the people. There are many problems with this.

First, this is a variant of the "ends justify the means" argument. Once you open that door for your pet issue, it remains open for someone else's pet issue. So, in this case, Cass's argument that there is no logical difference between racism and sexism is accurate, although both of your arguments are equally damaging to the rights and liberties of the people. Eventually, the Constitution, and the rights and liberties contained therein, become superfluous as each person's "most important" issue is allowed to trump it. The exception thus swallows the rule, and the Constitution becomes a meaningless scrap of paper.

Second, history teaches us that once a government is allowed to accrue power to itself, it doesn't give up that power thereafter. Thus each exception for only the most super-duper important reasons grows the power of the govt over everyone. Eventually, as now, the feds are deemed to have essentially limitless power. I was astonished to hear recently how many congressmen believed that the Constitution allowed the feds to do anything which it did not expressly forbid. The actual language of the Constitution, of course, says just the opposite -- that all powers not expressly granted to the feds are reserved to the states, and to the people. This doesn't matter, though, when you believe you have a super-duper important issue that must get resolved RIGHT THIS MOMENT. You therefore do violence to our freedoms and rights under the banner of your particular crusade.

Standing up for your principles is a very hard thing. It takes a mature and difficult viewpoint to uphold the long-term liberties and rights of our Constitution, particularly when faced with the immediate gratification of righting a moral wrong now. Once the Constitution is thrown under the bus, though, the long-term consequences are a lessening of freedoms and the imposition of an ever more powerful and tyrannical govt.

As I have grown older, I have come more and more to believe that positive moral change cannot be imposed from without, or from a ruling govt., or the use of collective force, but by the changing of each person's heart and mind on an individual basis. In this, I appear to be in the minority. Most seem more than happy to run to the govt to use it as a club to impose their views on others, with respect to various issues.

My cynical side tells me that, given the basic selfishness, greed, and jealousy of human nature, people will always sacrifice long-term protections and freedoms for short-term gains and power to achieve their "pet" issue or project, so perhaps our Constitution was doomed from the start. After all, it barely survived a generation before the Civil War substantively killed it and any chance of limiting the expansion of the federal govt. A noble purpose to be sure, but still only another ends justify the means argument writ large, and the road to hell has always been paved with good intentions.

Posted by: a former european at May 27, 2010 04:24 PM

Couple of issues not discussed:

1) Legally (not arguing "ought" here, just "is"), a restaurant where you serve food to people is not the same as your home where you serve food to people. The home is considered "Private" while the restaurant is considered a "Public Accomodation". Thus, you can't really analogize rules for your home to rules for your business without first addressing that distinction.

2) Even if you address 1), above, that would really only work for sole proprieterships and the like. Your restaurant is really just you excersizing your liberty. And since you are a person, you have rights which ought to be protected.

A Corporation (say, Red Lobster) is not a person. There is no person that can be said to be Red Lobster the way you can say there is a person that is the one woman bar Cassandra's Cocktails*. A corporation is a legal agreement whereupon you ask the gov't for *extra* protections that us ordinary people don't get.

If you don't want to be held personally responsible for your business then the business doesn't get the advantage of your rights either. What rights (priveliges, really, since those are gov't granted) your business retains are matters negotiated in the corporation agreement.

*Which despite its tagline of "You don't need another drink" still does slammin' business.

Posted by: Yu-Ain Gonnano at May 27, 2010 04:28 PM

Cass's argument that there is no logical difference between racism and sexism is accurate, although both of your arguments are equally damaging to the rights and liberties of the people.

How so? Did I argue that sexism is so severe a problem that it justifies the intrusion of the federal government?

If so, I missed that part of my post!

What I did say is that some minimum set of rights that apply to all people equally should be protected by law. And I stand by that.

Posted by: Cassandra at May 27, 2010 04:43 PM

Legally (not arguing "ought" here, just "is"), a restaurant where you serve food to people is not the same as your home where you serve food to people. The home is considered "Private" while the restaurant is considered a "Public Accomodation".

I'm not so sure I was saying they were the same as I was asking what it was about them that is so different as to justify disparate legal standards?

Posted by: Cassandra at May 27, 2010 04:46 PM

In those respects, it would be more free; and as you point out, if you didn't like your particular state's take on things, you could move.

In that one respect, the federal government should indeed spend millions or billions to fund from taxes.

Because making sure people move to where they feel they belong is an ultimate expression of heart's hope and freedom's desire.

Posted by: Ymarsakar at May 27, 2010 04:46 PM

I'm not trying to open the door, afe, so much as to close it. It was open when I got here! The problem is, the door to Federal intrusion was left open, and there is a continuing traffic by day and night.

I believe Cass is right to say that sexism is different from racism. Actually, I think they're categorically different -- that they're not really very much alike at all. Sexism, as she rightly points out, is based in part on real physical differences; whereas "race" is largely a fiction, sex is real. The attempts to explain how "sex" is really "gender" and just an illusion always run up on the rocks of reality; and indeed, they do so in just the way that attempts to explain that "race" is real and important do so also.

So, really, "sexism" is a debate about what the import of real differences is and/or should be; "racism" is about inventing differences to justify doing things you probably shouldn't be doing to start with.

Posted by: Grim at May 27, 2010 04:55 PM

The problem is, the door to Federal intrusion was left open, and there is a continuing traffic by day and night.

it was left open partially because after the US Civil War, the radical Republicans tried to make laws to preserve the voting freedoms of newly freed blacks, but a Democrat President stopped them. By the time they got rid of him (they couldn't override some of his vetos because Democrat members of Congress weren't in on the game), some Republican governments in the South had popped up but only because US federal troops were there.

Once they leave, the voter intimidation really started up. I'm not sure the Jim Crow laws were so much racist laws as it was simply a way to keep Democrats in power. And the more Democrats in the South were in power, the more they could nurture whatever Southern grievances were present concerning Sherman, The War of Northern Aggression, and the Whole Nine Yards about Lincoln the "Tyrant".

Dems love people with grievances, Grim. It makes them easy to control.

Posted by: Ymarsakar at May 27, 2010 05:08 PM

Also, we shouldn't forget the Power Slam that was WWII. Black only units fought quite well there.

And even then, I suspect the Southerners had contributed more than their fair share to the US military forces. When those people saw the worth of blacks in war, could they really go back home to the South and just be satisfied with the "status quo", Grim? Or would they fight to change things, as veterans returning from Iraq are doing right now?

You tell me, Grim.

Federal intrusion is federal intrusion. It would NEVER have done a damn thing had the people of the South as well as All Americans not been willing to change. Truman signed an order de-segregating the US military on whites and blacks. But that was with, I believe, the US Marines having already achieved a lot of that already. If that order had came down the pipe without United States veterans already championing and working to implement them because they believed, that order would have done nothing.


Posted by: Ymarsakar at May 27, 2010 05:15 PM

I'm never sure how seriously to take you when you talk about the Democrats of, say, 1878 in the same breath as the Democratic Party of today. There are doubtless surface similarities between the Bourbon Democrats and, say, Nancy Pelosi; but I don't think they go very deep.

"Bourbon Democrats represented business interests, supported banking and railroad goals (but opposed subsidizing banks, railroads or other enterprises - or protecting them from competition), promoted laissez-faire capitalism (which included opposition to the protectionism Republicans then advocated), opposed imperialism and U.S. overseas expansion, fought for the gold standard, and opposed bimetallism. They strongly supported reform movements such as Civil Service Reform and opposed corruption of city bosses, leading the fight against the Tweed Ring. The anti-corruption theme earned the votes of many Republican Mugwumps in 1884."

Compare and contrast, as they used to say in school!

Posted by: Grim at May 27, 2010 05:15 PM

I'm fuzzy on the US Marine history on this respect. I think they were the last branch to be de-segregated, actually.

Posted by: Ymarsakar at May 27, 2010 05:16 PM

"Or would they fight to change things, as veterans returning from Iraq are doing right now? You tell me, Grim."

All right, I will tell you: the South was completely opposed to desegregation. Veterans or not, it was viewed as a massive disruption to Southern society. Moderate political figures in the South were swept aside in election after election, in favor of hard line segregationists, once the Civil Rights movement began to agitate in earnest.

This is why I think there's a critical difference of kind between "rights for women" and "rights for blacks" (as opposed to sexism and racism, where I also see a categorical difference; but here I am speaking not of the sentiment in general, but of the movement to give that group voting rights specifically). The movement to give voting rights for women was able to succeed through democratic methods, even without women being able to vote on it. That was never going to be the case for voting rights for blacks, in the South. That was resisted with every tool, and every weapon, that the law or the state could provide; and where that failed, with terrorism.

Posted by: Grim at May 27, 2010 05:19 PM

Compare and contrast, as they used to say in school!

The policies, in terms of socialism, weren't the same.

But you don't need the exact same political platform to realize that some people aren't leading their states or nation towards the right direction.

I don't care what reasons they have. Managing power for power's sake, keeping competitors away, playing unfair and keeping people down in the muck because you're afraid they will become better. You don't need to be Nancy PillowC. You just beed to a certain mindset.

Bad people or megalomania didn't come on the scene with the election of Obama or the creation of Marxism. They were already here in the human heart. They manifest into different things at different times.

After all, the Republicans are now seen as the Party of the South. When they were once seen as the Party of the Black Man. Now the Democrats, the party of the whites, is now seen as the Party of Blacks.

Does that mean anything essential has changed? Not really, in my view. People's desires and needs changed, so political platforms changed or the perception of it changed. But so what. In the past, Democrat party had Southerners as their base. Now the Republicans do.

The difference isn't getting people what they need or the name brand. The difference is when leaders and platforms succeed as opposed to horribly fail.

Posted by: Ymarsakar at May 27, 2010 05:20 PM

That was never going to be the case for voting rights for blacks, in the South.

Not with the politicians in power at the time, no.

Some politicians, particularly one person you blogged about, could be trusted. But the federal intrusion broke his power, not raised it. This is like assassinating Diem in Vietnam and saying that this "improved" things for South Vietnam and America.

It did not. If any victory was had, it was had through brute force, but those things result in friction and bitterness. It makes people ungovernable afterwards.

Posted by: Ymarsakar at May 27, 2010 05:23 PM

That was never going to be the case for voting rights for blacks, in the South. That was resisted with every tool, and every weapon, that the law or the state could provide; and where that failed, with terrorism.

Voting rights aren't the same as de-segregating schools, however. By pressing the South on this issue, they made compromise untenable.

And this is what happens when one side has the power of the federal government and can simply muscle their way through. They don't have to do something like build grassroots or counter-insurgency networks of information amongst the locals. They can just steam roll them over.

Posted by: Ymarsakar at May 27, 2010 05:27 PM

I'm not so sure I was saying they were the same as I was asking what it was about them that is so different as to justify disparate legal standards?

I'm not so sure I was saying that you said they were the same. :-)

I'm just saying that Althouse's analogy of a resaurant to a dinner party makes an implied assumption that the two are equal without ever addressing explicity whether or not that assumption actually is (or should be) correct.

Personally, I like that assumption for a business that is in a sense "a person". If I can be a horrible person in how I conduct my personal affairs (like to whom I sell my car) and the .gov shouldn't do anything about it then the fact that I make enough profit by doing so to fund my lifestyle shouldn't change whether the .gov can or can't do anything about it.

But a corporation, I think, is different. If I sell you my car and you get hurt because I told you the brakes were fine and I darn well knew they weren't, then I am personally liable for that fraud. You can sue *me* for *my* assets. You can take my personal home and leave me homeless. If, however, I've gone to the .gov and gotten this shiny corporate sheild (that you the customer don't and can't have, btw) then *I* get off the hook. You can't sue *me* and take *my* assets. The worst you can do is bankrupt the business and render me unemployed.

You don't get to say that the business counts as *you* when it's in your favor but that the business is *not you* when it's unfavorable.

Posted by: Yu-Ain Gonnano at May 27, 2010 05:44 PM

Federal intrusion is NEVER a good thing.

I don't know about that. While I think Federal intrusion is extremely often a bad thing, I think the .fedgov intrusion into protecting the voting rights of southern blacks was certainly a good thing.

Posted by: Yu-Ain Gonnano at May 27, 2010 06:31 PM

I once heard that if you can't attack a person's character then try to discredit them with false accusations. I think this is what is happening now to Rand. Neither he, nor you & I deserve such falsehoods.

Posted by: OhioRiver at May 27, 2010 08:13 PM

Cass, you are correct that I did not clarify what I meant. My point was that federal intrusion, whether to combat racism or sexism, is equally harmful, although the same type of argument can be made for those issues and others. I wasn't trying to put words in your mouth.

As to the rest, I stand by my position that federal intrusion is never a good thing. What you consider "good" varies from person to person and state to state, so as long as you are willing to let the feds overreach for your pet issue, then others will demand the same for theirs. This creates an unlimited reach for the feds over time.

Posted by: a former european at May 27, 2010 08:30 PM

Of course, Rand Paul is a libertarian as long as the gubmint doesn't take away his Medicare cabbage:

"In fact, Paul — who says 50% of his patients are on Medicare — wants to end cuts to physician payments under a program now in place called the sustained growth rate, or SGR. “Physicians should be allowed to make a comfortable living,” he told a gathering of neighbors in the back yard of Chris and Linda Wakild, just behind the 10th hole of a golf course."

link:

http://blogs.wsj.com/washwire/2010/05/14/rand-paul-cut-spending-but-not-medicare-doctor-payments/tab/print/


Even libertarians are catching on that he isn't a libertarian:

"Koch said Paul's views on a variety of subjects differ from the Libertarian Party, including his promised support for any measures to ban abortion and his opposition to same-sex marriage."

"The reason why we would even consider running somebody in this race is because we're not going to let Rand determine what a Libertarian stands for," he said. "I'm here to say Rand does not have the Libertarian ideology."

link:

http://www.washingtonpost.com/wp-dyn/content/article/2010/05/26/AR2010052602334_2.html

Posted by: Craig at May 28, 2010 08:51 AM

so as long as you are willing to let the feds overreach for your pet issue, [emphasis mine]

Therein lies the problem. How do you define "over"? Or for that matter intrusion?

When you define the protection of rights as "over" and not "proper" for the role of gov't, rights only exist in as much as you can bring sufficient violence to bear to discourage others to leave you alone. And if you can't, well, then it sucks to be you.

"Oh, your child was kidnapped and is being held for ransome 3 states away, sorry we can't *intrude*. If we did, we might have to intrude somewhere else too. You are on your own. Good Luck."

That's straight up anarchy.

So there has to be some level of "intrusion" that isn't "over"reach.

Posted by: Yu-Ain Gonnano at May 28, 2010 09:52 AM

Even libertarians are catching on that he isn't a libertarian:

I think that is better put as:
Even Libertarians are catching on that he isn't a libertarian:

Which isn't at all surprising. A lot of libertarians consider Libertarians a bunch of whackos.

Posted by: Yu-Ain Gonnano at May 28, 2010 09:55 AM

YAG has put his finger right on the problem of where libertarianism should fit on the spectrum between anarchy and whatever each of us believes "appropriately limited government" means. The government is not just a venerable institution that publishes uplifting sentiments and offers its coordination services to anyone that voluntarily subscribes to them. It's an armed body that can enforce its will. As long as its will is reasonably popular, citizens will support its actions over the protests of individuals. We'd like our fellow citizens, in the form of federal power, to rally behind us if our child has been kidnapped and transported over state lines, even if that infringes on the freedom of the citizen kidnapper.

If you exclude anarchists, what stirs up the rest of us libertarian-types is disagreements over which areas work so badly without a powerful central authority that we're willing to put up with its obvious drawbacks.

As for Mr. Paul's views on Medicare rebimbursement rates, I'd be more shocked if his patients' money hadn't forcibly been taken from them throughout their working lives, ostensibly to enable them to pay their medical bills when they reached their 60s. It's quite a cheat to find that the people who took this money for "safekeeping" are now deciding that it should be spent only on doctors who toe the government line about some mythical level of reasonable incomes for doctors. The government's got no business enforcing price controls on unwilling providers and consumers even if they worked, which they don't, other than to depress supply. It might be reasonable to say that the government's program is broke and can't cover the average 60-something's medical bills, in which case I say, fine, then admit that, cover the percentage you can afford to cover, and suffer the political consequences -- but don't prosecute the doctors who charge more, or interfere with the choices of patients who have to supplement their Medicare benefits with the rest of their unconfiscated earnings. The Medicare price controls are a desperate effort to cover up the fact that Medicare, like Social Security, is a Ponzi scheme.

Posted by: Texan99 at May 28, 2010 10:34 AM

Regarding female genital mutilation (FGM):

Current U.S. federal law enacted on September 30, 1996 prohibits FGM of minors.

The criminalization subsection took effect 180 days after the date of enactment, so March 30, 1997, is the generally recognized effective date. A number of U.S. state laws prohibit FGM, as well.

From the text of the law:

"Congressional Findings

Section 645(a) of div. C of Pub. L. 104-208 provided that: ``The Congress finds that--

``(1) the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States;

``(2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved;

``(3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;

``(4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control;

``(5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law; and

``(6) Congress has the affirmative power under section 8 of article I, the necessary and proper clause, section 5 of the fourteenth Amendment, as well as under the treaty clause, to the Constitution to enact such legislation.''

Posted by: Craig at May 28, 2010 10:44 AM

I'm aware of what the law is; that's irrelevant to the question of what the law ought to be.

These findings do illustrate the problem, though. Exactly what authorizes Congress to ban a medical procedure, conducted wholly within a single state, between two parties who are citizens of that state?

They claim it is the "necessary and proper" clause, plus section 5 of the 14th Amendment (which simply says that Congress shall have power to enforce the 14th Amendment). In other words, it's a hand wave: "Oh, we have lots of kind of general powers to do stuff for reasons." What specific power are they making reference to? The power to prevent states from depriving people of life and limb without due process?

The declaration in section (3) seems to suggest they're thinking of privileges and immunities, but if they are they couldn't be less clear about it. What precise constitutional right is being invoked here? They are able in section (5) to recognize that there is a clear constitutional right on the other side, rooted in the first amendment. A Congressional finding, backed by the work of the Congressional Research Service, ought to be able to cite chapter and verse on the particular privileges or immunities that are relevant.

As it is, all we have is an assertion that Congress has some sort of general power, arising from one of the vaguer clauses. That won't do; Congress needs to be held to a strict standard. It should always demonstrate clearly and precisely why it has the power, and our courts should void any laws that fail to do so.

Posted by: Grim at May 28, 2010 11:00 AM

In that respect, Grim, my previous solution would apply.

Simply give all individuals the freedom, backed up by government funding and resources, to leave.

Plenty of women try to escape being mutilated whether before or after. If they don't want to leave, we shouldn't force them. But if they do want to leave, then what's stopping them other than resources, opportunity, and legal barriers?

What this eventually comes into conflict with is parent-child. Because the child is below legal age, somebody has to be responsible for her. The answer isn't for government to appoint guardians or to butt in and make decisions. The answer is to empower those most affected by the problem, to make the decisions.

This is counter-intuitive, because it isn't necessary now. Back in the day, women and men of young age, in the teens, had to take responsibility and make choices because there was nobody else around to do it for them. But now government can FOrce Run Over everybody, so it doesn't matter and the coming of age gets pushed further and further back. Now it is like legally 21, but realistically 25-29. You don't see many taking responsibility until their 30s. For the Baby Boomers, it almost didn't matter what age they were or are. Kerry's still living off his wife's inherited dime, and milking the other money out of the US taxpayers.

Whether it is necessary to push power and responsibility down the age bracket, it ought to be that way. Because we've already proven that adults have issues that they can't solve. It is the precise reason that they can't solve it, that they shouldn't try to solve other people's problems. They'll just fail.

Posted by: Ymarsakar at May 28, 2010 11:09 AM

Grim,

Khalid Adem, in 2003, was the first person tried for FGC and the first person convicted. Nobody challenged the constitutionality of the law at that time.

Until somebody challenges their prosecution until constitutional grounds or a parent sues for the right to mutilate their own child, it will remain illegal and I am not unhappy about that.

Posted by: Craig at May 28, 2010 12:05 PM

Here's an update on the AAP's retraction of their April suggestion of a clitoral "nicking" procedure:

http://www.cnn.com/2010/HEALTH/05/27/AAP.retracts.female.genital.cutting/

Posted by: Craig at May 28, 2010 12:15 PM

Thanks, Craig. I was glad to see that.

Here's a mental experiment. Say the US suddenly gets this influx of immigrants (legal) who practice a strange religion in which, as a rite, demands that parents lop off the left hand of their firstborn child. Doesn't matter whether that child is male or female.

And State X decides to make that legal (IOW, it creates a legal exception to the usual statutory prohibitions against maiming or dismembering other people, child abuse laws etc.)

Would we want the feds to step in?

Posted by: Cassandra at May 28, 2010 12:21 PM

My comment above should read:

"Until somebody challenges their prosecution on constitutional grounds or until a parent sues for the right to mutilate their own child, it will remain illegal and I am not unhappy about that."

Posted by: Craig at May 28, 2010 12:23 PM

"Would we want the feds to step in?"

If that's what it took to stop the practice. Yes.

Posted by: Craig at May 28, 2010 12:31 PM

If we do, we can amend the Constitution to provide them with the power. I object to simply having the Congress say, "You know what? This is bad, so we obviously must have the power to fix it."

That a law is stupid does not make it unconstitutional; and that a law is wise does not make it constitutional. If it is adequately and obviously wise, however, you may be able to make it constitutional through the amendment process.

I think your favorite Justice would agree with that concept.

Posted by: Grim at May 28, 2010 12:49 PM

It's not difficult to word such an amendment, which would give you all the power you want the Federal government to have without additional legislation:

1) The religious protections of the First Amendment apply to institutions of religion, to individuals, and to families. Neither the Federal government nor the several states shall have power to regulate religious practice except as provided in this amendment.

2) The religious protections of the First Amendment, reaffirmed by this amendment, do not extend to the physical removal of anatomy from minor children. All such practices shall be held to be illegal.

3) The Congress and the Supreme Court of the United States, as well as lesser courts as established in Article III, will have the power to enforce this amendment.

Posted by: Grim at May 28, 2010 01:02 PM

And yet male circumcision is legal and almost completely uncontraversial in all 50 states.

Posted by: Yu-Ain Gonnano at May 28, 2010 01:33 PM

If you wish to make an exception for that, you can write it in the amendment.

Now, what this process does is legitimize the tyranny of the majority: we're saying that it's OK for the majority to act like tyrants as long as it is a large enough majority. As long as the majority is large enough to support a Constitutional Amendment, essentially anything is legal.

Likewise, we can carve out a special exception for the Christian/Jewish practice of circumcision by saying that those groups are acceptable to the vast majority.

That happens to be true, if incompatible with the First Amendment. Of course, if you're amending the Constitution, you don't have to worry about that. Lesser laws do.

Posted by: Grim at May 28, 2010 01:42 PM

When the controversy is over permanent harm to children, the argument for the freedom of autonomous citizens starts to break down. No religious excuse will be accepted for parents who believe sincerely that they should throw their children into volcanoes. It's not only the parents' freedom that we're concerned about; there are individuals involved whose consent we can't get. This is in part why the abortion dilemma is so difficult for people who hate to see the government intruding into its citizens' bodies.

I'd be sorry to see an adult woman undergo FGM, but I wouldn't feel it was my place to step in unless I thought she was under duress and needed to be placed in the witness protection program with a new identity in order to escape her crazy relatives.

FGM isn't very much like male circumcision, in my view, unless you restrict it to the largely symbolic "pin-prick" version. Full-up female circumcision irreversibly destroys the possibility of sexual pleasure, deliberately, in order to control female sexual activity. Male circumcision is intended to have no impact on sexual arousal, though whether this is a realistic belief or not I couldn't say. The practice is so routine in the U.S. that I've never encountered an uncircumcised man sexually.

Posted by: Texan99 at May 28, 2010 02:05 PM

Actually, there is a movement to end male circumcision as well:

http://www.mgmbill.org/index.htm

From the site:

"The MGM (Male Genital Mutilation) Bill proposal has been submitted to every member of Congress seven times - most recently on January 11, 2010. In 2006 - 2010, our state offices also submitted state level MGM Bill proposals to all members of various U.S. state legislatures."

Posted by: Craig at May 28, 2010 02:08 PM

Now, what this process does is legitimize the tyranny of the majority:

My point exactly. Rights are meaningless if we only protect the actions we (individually or collectively) agree with.

Posted by: Yu-Ain Gonnano at May 28, 2010 02:09 PM

I realize that I'm starting to conflate two ideas: (1) the reservation of rights to states that are not expressly granted to the feds and (2) to role of the feds in protecting citizens from the power of the states. Whether or not it's constitutionally pure, and whether or not the 14th amendment really does or should say this, I want the federal government to have the right to prevent the state government from passing certain kinds of laws, such as a law that makes it OK to murder, mutilate, or enslave classes of people.

Posted by: Texan99 at May 28, 2010 02:11 PM

There is a movement to end male circumcision as well.

FWIW, I wasn't in favor of having it done to my 2nd boy (and that was 28 years ago - if you think the procedure is uncontroversial now, try bucking the system then). You would have thought I wanted to put a plastic bag over my baby's head and tie it at the neck until he turned bright blue.

That said, there is really no comparison between the two procedures. We're not talking about completely removing the entire tip of the penis, or sewing orifices completely shut, or cutting away large swathes of tissue. That would be the valid comparison.

We're not talking about rendering one or more parts of the reproductive system completely inoperable for normal use with absolutely NO health benefit.

When I hear people equate the two, I just shake my head. Trust me, I understand the arguments against but they're not the same.

Posted by: Cassandra at May 28, 2010 02:15 PM

Full-up female circumcision irreversibly destroys the possibility of sexual pleasure, deliberately, in order to control female sexual activity. Male circumcision is intended to have no impact on sexual arousal, though whether this is a realistic belief or not I couldn't say.

Doesn't seem to me that the intent matters much.

Would it change your mind if the parents told you that the intent of circumcising their daughter was as a symbolic shedding of blood to seal a covenent with God without regard to sexual repurcussions (whether this is a realistic belief or not).

Similarly, what if the parents told you they were circumcising their son to dampen his sexual response under the belief it would lessen his chance of becoming a rapist (whether this is a realistic belief or not).

If it were to change our response would we be not, in effect, punishing thought crime?

We approve of your thoughts so you may proceed, we don't approve of their thoughts so they must be punished.

Posted by: Yu-Ain Gonnano at May 28, 2010 02:26 PM

Yu-Ain,

With mutilation, intent doesn't matter and that's what Congress said in 1996 when the FGM law was passed:

``(3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional;


``(5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law"

Posted by: Craig at May 28, 2010 02:39 PM

I do agree that female circumcision is far and away a much larger scale procedure than male circumcision but they are both "removal of anatomy from minor children".

And if you use that rubric to ban the one, you must also ban the other.

And if your rubric to treat them differently is no more than "Well, we happen to like those people so their stuff is OK" or "We approve of their reasons" then rights simply aren't relavent. You disapprove and that's good enough to force your will on others.

Some other rubric is needed if you want to preserve people's rights.

Posted by: Yu-Ain Gonnano at May 28, 2010 02:41 PM

That's why I asked the question about lopping off a hand :p

I do think, even though people won't like this, that it's difficult to find a pure philosophy that works across the board.

Posted by: Cassandra at May 28, 2010 02:44 PM

Oh, I guess I believe that the two circumcisions are radically different in their effect, and I threw in the "intent" because there can be a difference of opinion about their actual effect, at the margins. It was word-fudging. Yes, I do believe that the intent is important, in cases where there may be some subtle controversy over the efficacy of the procedure. In the case of FGM, the intent and the physical results are equally and obviously repugnant. In the case of male circumcision, the physical impact is small enough and the purported healthy intent is arguable enough that I'm willing to keep an open mind a while longer, though you'd never in a million years see me interfere in a parent's decision to skip the procedure.

If parents think a medical procedure is relatively harmless and may have health benefits, and I can't clearly prove them wrong, I'm not inclined to interfere in their family decisions. That doesn't mean I'm afraid to take a stand against mutilating small girls' genitals, for the sole purpose of rendering them sexually numb in order to keep them under men's control, out of a concern for privacy or religious freedom.

Posted by: Texan99 at May 28, 2010 02:47 PM

FGM is serves no purpose for the health of the female. It was my understanding that male circumcision does have some legitimate health purpose: if not done, and the male does not properly keep that part of his anatomy cleaned, it can cause health issues for him and his sexual partners. Am I wrong on that understanding? Honestly, I've not got an opinion on male circumcision: it's not been something I've had personal experience with in any way, shape or form.

Posted by: Miss Ladybug at May 28, 2010 02:48 PM

There isn't a whole lot of debate about whether there are ANY health benefits. It's more of a question about whether the pros outweigh the cons.

Posted by: Cassandra at May 28, 2010 02:57 PM

Craig,
That's true, but what *is* isn't really the issue.

*If* the .fedgov has the power to say "Thou Shalt Not Remove Anatomy From A Minor" that will cover a lot more than just FGM. And not just circumcision, it'll also apply to things like correction of polydactyly as well (neither of which are medically necessary).

But to ban one because it's a religious practice while allowing the other because it's secular strikes me as religiously discriminatory on it's face.

Posted by: Yu-Ain Gonnano at May 28, 2010 03:00 PM

if not done, and the male does not properly keep that part of his anatomy cleaned, it can cause health issues for him and his sexual partners. [emphasis mine]

The if condition suggests that isn't really a medical issue as much as it is a convenience issue.

Posted by: Yu-Ain Gonnano at May 28, 2010 03:07 PM

Yu-Ain,

FGM is banned because it is considered assault under Title 18 of the US Code:

Title 18 – Crimes and Criminal Procedure

Part I - Crimes

Chapter 7 - Assault

Section 116 - Female genital mutilation

(a) Except as provided in subsection (b), whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both.

(b) A surgical operation is not a violation of this section if the operation is--

(1) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner

Posted by: Craig at May 28, 2010 03:14 PM

Yes, it is of convenience, but this would be a benefit of the procedure. There is NO benefit for the female who has ungone FGM, health or otherwise.

Posted by: Miss Ladybug at May 28, 2010 03:15 PM

I don't want to disclose my entire store of Penis Lore (vast as it is) but cleanliness is not the only issue.

Here is some evidence that circumcision has health benefits, including:

* A decreased risk of urinary tract infections.
* A reduced risk of sexually transmitted diseases in men.
* Protection against penile cancer and a reduced risk of cervical cancer in female sex partners.
* Prevention of balanitis (inflammation of the glans) and balanoposthitis (inflammation of the glans and foreskin).
* Prevention of phimosis (the inability to retract the foreskin) and paraphimosis (the inability to return the foreskin to its original location).

Posted by: Cassandra at May 28, 2010 03:16 PM

Sorry - here's the link:

http://www.webmd.com/sexual-conditions/guide/circumcision

Never say VC isn't educational.

Posted by: Cassandra at May 28, 2010 03:17 PM

...a pure philosophy that works across the board.

That's why there's no difference between the law and violence. It's really just violence. Sometimes we pretend that "law" means something else, but when push comes to shove, we just want the government to do what we want.

All we're discussing here is what our threshold is for applying the tyranny of the majority; whether at the state or the Federal level; whether a simple law by Congress is good enough to override a state majority in favor of a Federal majority, or whether we'd require a constitutional amendment to override what are supposed to be constitutionally protected rights of religious freedom.

Congress currently feels it meets the Constitutional 1A standard simply by including a non-binding finding in the law that says, "This doesn't violate anyone's religious freedom." Congress can prove it has the power with a wave at the necessary-and-proper clause; it need not demonstrate that this is in any way necessary (let alone proper) to the good of the United States. Or it can wave at the 14th Amendment, without explaining exactly what privilege or immunity is being cited, where it is rooted, and why it overrides the 1st Amendment.

If that's enough to pass the Constitutional test, we have no Constitution. Rights are what Congress says they are. It has whatever powers it wants.

Now, it seems to me that principle -- that we simply elect to let Congress define its powers and our rights -- will cause more harm to women than FGM has any hope of ever causing. As evil as it may be, surrendering our rights to Congress is no answer.

But hey -- we're in the majority, so there's nothing to fear. Right?

Posted by: Grim at May 28, 2010 03:26 PM

YAG, I think it's easy to go too far trying to devise laws that are neutral on the issue of intent. I applaud our laws' recognition of the world of difference among privileged self-defense, negligent homicide, and first-degree murder, even if the two crimes involve exactly the same sequence of physical acts and results, and are differentiated strictly by intent. That's not the same as creating thought crimes. I call it a thought crime when the physical result is benign and only the thought is objectionable.

It's not at all necessary for the law to be stated in the neutral terms of an absolute prohibition of the removal of any piece of tissue from a minor. Context and proportion are everything. Tonsillectomies can become controversial, if we suspect that they're being over-performed for the purpose of running up surgical fees, or out of a fear of misguided malpractice liability, or simply as a result of a mistaken trade-off between risks of different sorts. But we rarely worry about whether a minor who was subjected to a tonsillectomy has been unjustly deprived of valuable tissue and whether the trade-off was worth it.

You can't easily sort out any of these kinds of controversies without taking intent and context into account. Obviously once you do that, you risk getting lost in the swamps of religious prejudice, irrationality, and privacy rights, but that's the breaks. I don't see that we have any choice about learning to navigate those swamps. Human law is never going to be as simple or pure as a computer code.

Posted by: Texan99 at May 28, 2010 03:30 PM

Grim, I agree with you that government is violence and that "All we're discussing here is what our threshold is for applying the tyranny of the majority" -- but what, then? That "all" that we're discussing is a pretty big "all."

Human law is not like physical law; it's not self-enforcing and inevitable. It's an agreement among people what they'll put up with and what they won't. It's largely a set of agreements about when we'll offer our cooperation to the posse and when we won't. In our society, we place an enormous premium on ensuring that the set of agreements is not too arbitrary or unpredictable, that it's enforced without much consideration of the wealth or prestige of the miscreant or his victims, and that it's compatible with a vaguely coherent system of moral values such as assumptions about theft and murder. Even within this general agreement, there's a big difference between the kind of crime that mobilizes the vigorous cooperation of the entire citizenry (say, an ongoing abduction of a child by a molester) and the kind of crime that many people will cheerfully collude in breaking whenever it's not too risky (say, tax evasion, drug laws, copyright violations, or illegal immigration). The background threat of violence is inherent in the police force, but the police force is effective largely because of the widespread voluntary cooperation of enough people to matter. I think that's another way of saying "the threshold of the tyranny of the majority."

Posted by: Texan99 at May 28, 2010 03:46 PM

Law is simply distilled violence. But like whiskey, it can be easily poisoned and made just as bad as raw violence.

Posted by: Ymarsakar at May 28, 2010 06:04 PM

Whiskey is poison. You just have to drink enough of it, and you're throwing up everywhere; or dead.

I believe the government can't be trusted, and has to be checked and balanced -- its branches pitted against each other, its levels pitted against each other, and each level and each branch having some power to resist and thwart the others. This tension produces the maximum space for genuine liberty by the individuals, who are never going to be as powerful as the government.

What we're talking about here is a principle that lets the Federal government have unlimited power, with the states having no effective counter-check. That's a bad idea, I believe. As much as we may despise FGM, or any other brutal practice, we must also consider the far greater harm the government may do if given unchecked, unlimited power because we want to see it 'do something about!' that practice.

The amendment standard means not only a higher democratic standard, but that the Federal government has to go back to the states to ask for the authority to be ratified. The law-with-an-idle-finding-or-two standard means that there is no limit at all.

Posted by: Grim at May 28, 2010 06:40 PM

The idea of using the States to balance the power of the Feds, as intended by our founders, was permanently destroyed by the Civil War, at gunpoint. Military force will always trump the niceties of constitutional law. When a majority of the States realized they could force their will upon a recalcitrant minority of States by using Federal military power, then that particular "check and balance" was eliminated for good. The Feds now have essentially unlimited power vis a vis the States. One more unintended consequence of short-sighted people who believe the ends will justify any means whatsoever used to achieve those worthy ends. In other words, so long as I achieve my "worthy" cause today, who cares about tomorrow and resultant consequences.

Posted by: a former european at May 28, 2010 07:03 PM

So I am one of those children of an illegal alien that Rand would like to deport.

My father came here illegally in 1911. He lived and died here 70 years later.

I am now in my 60's, was born in this country, speak only English, observe all the customs, pay taxes, our family is even Christian. I have no knowledge of my father's homeland, no relatives that I know if, have no desire to even visit, don't speak the language, don't observer their customs

I am every bit as American as Rand Paul

Yet he wants to take away my citizenship and make me into some Non-American?

Rand..illegal aliens are an easy scapegoat.

But don't even try to target Americans who love their country just because their parents didn't come over with the right papers.

I am starting to think that Rand is appealing to the white racist elements in his state who wish to turn the clock back 100 year and put non whites in the back of the bus.

Posted by: norris hall at May 28, 2010 07:07 PM

Norris~

I don't think anyone who wants to eliminate anchor babies is talking about stripping citizenship from people who already have it. I think it's more an issue of "from this point forward", children of illegal aliens where the mother just happened to be in the US (illegally) when she gave birth would no longer automatically have citizenship. No other country on the planet grants citizenship like we do - to anyone born within its borders, regardless of the status of the parents.

Posted by: Miss Ladybug at May 28, 2010 08:54 PM

I think that's right, ML.

Birthright citizenship is actually highly unusual; in Europe, I think only Ireland still uses it (if indeed they still do!).

Posted by: Grim at May 28, 2010 10:44 PM

We can't stop illegal immigration, so let's make it legal.

We can't stop littering, pot-smoking, speeding, rape, and murder, either. Why not toss all our laws out?

The reason is that we are either a nation of laws or we cease to be a nation.

We need to elect people willing to enforce the law and less willing to sell us out to our enemies, foreign and domestic...

Posted by: setnaffa at May 30, 2010 12:24 AM

Some crimes you can't stop because you can't catch everyone who's clever enough to get away with them. On the other hand, no one who commits the crimes can afford to publicize it, because most people would unhesitatingly turn him in, and we've devoted enough public resources to the crime to ensure that there will be a cop available for the arrest. I thinking of, for example, armed bank robberies.

Other crimes you can't stop because the population is ambivalent about the crime and won't whole-heartedly cooperate with the police, especially if they believe the punishment is out of proportion to the crime. Here I'm thinking of, for example, moderate use of marijuana in private homes. Or, often, illegal immigration by productive workers who are taking care of their families.

Our immigration quotas are out of synch with the immigration levels that American citizens as a whole, and as an economy, are prepared to absorb. But the public acceptance level is spotty and degenerating. Our public policy about how to assimilate the newcomers is breaking apart. People who would have tolerated illegal immigration without worrying too much about the principle of secure borders are getting fed up with the increasingly irresponsible approaches to education, healthcare, and crime control that the progressive culture keeps generating.

I think you can have a welfare state, or open borders, but never both.

Posted by: Texan99 at May 30, 2010 09:44 AM

Should the government, for instance, be able to prevent Muslim parents from genitally mutilating their daughters?

Should the government, for instance, be able to prevent Jewish or Christian parents from genitally mutilating their *sons*?

Posted by: Tony at June 2, 2010 03:09 PM

Well, I would argue that there is a fundamental difference between a medical procedure that:

1. Does not prevent the normal use/function of the affected body part, and

2. Has recognized health benefits (even if there may be disagreement as to whether they outweigh the risks)

3. Has a legitimate medical purpose that has no basis in religion.

...and a medical procedure that:

1. By definition, renders one or more body parts inoperable, and

2. Has NO recognized health benefits whatsoever.

3. Has NO legitimate medical purpose outside its basis in religion.

Posted by: Cass at June 2, 2010 03:25 PM

FGM is banned because it is considered assault under Title 18 of the US Code: - Craig

Craig, I have never once disputed what *is* so why do you keep bringing it up? You seem to be under the impression that *is* is necessarily the same thing as *ought*.


I applaud our laws' recognition of the world of difference among privileged self-defense, negligent homicide, and first-degree murder, even if the two crimes involve exactly the same sequence of physical acts and results, and are differentiated strictly by intent. - T99

Perhaps you would consider it a distinction without a difference, but I would differentiate purpose from intent from result. The purpose of self defence is not to kill. It is to end the threat to your own life. You may intend to accomplish this by killing your attacker, or you may intend to accomplish this without killing your attacker, but that is not the purpose. If it happens to end in the death of the attacker, oh well, sucks to be them. If not, that is also fine. Your intention on the matter of the attackers life or death doesn't change anything (nor for that matter, does the result). It's when your intent to kill becomes the purpose that it is murder.

So I am one of those children of an illegal alien that Rand would like to deport. -Norris

I don't think anyone who wants to eliminate anchor babies is talking about stripping citizenship from people who already have it. - Miss Ladybug

Even if they did, it wouldn't matter. One cannot make a retroactive law (Ex Post Facto). They are unconstitutional.

Should the government, for instance, be able to prevent Jewish or Christian parents from genitally mutilating their *sons*? - Tony

As has been discussed in many prior comments: Your rubric for making that determination matters greatly.

Where I'm squishy (Paging Dr. Freud. Please call your office. - ed.) is in the rubric of saying that removing anatomy for religious reasons is bad but doing it for cosmetic reasons (polydactyly), that's just fine. Vanity is all well and good, so long as you don't dare be religous about it. You want to circumsize your son because you think it's unattractive? Sure, I'll get the paperwork started. You want to circumsize your son because some invisibile man in the sky told you to? Nope, no procedure for you.

The religious aspect needs to be left out of it, completely.

Posted by: Yu-Ain Gonnano at June 3, 2010 11:51 AM

That's why I thought this was an interesting question.

What's even more interesting is when you compare it to people's positions on abortion (opponents implicitly recognize that children are people and thus have some rights that ought to be protected by law, supporters don't recognize any right but the mother's, really).

This is the problem with bright line reasoning - at some point you get to a place where the bright line gets awfully fuzzy, or your principles begin to conflict with each other.

Posted by: Cass at June 3, 2010 12:20 PM

Well, after I was circumcised, I was unable to walk for over a YEAR! I'd hardly call that harmless!

Joking aside, someone mentioned something else worth discussing further. Cass stated:
Well, I would argue that there is a fundamental difference between a medical procedure that:

1. Does not prevent the normal use/function of the affected body part, and

2. Has recognized health benefits (even if there may be disagreement as to whether they outweigh the risks)

3. Has a legitimate medical purpose that has no basis in religion.

...and a medical procedure that:

1. By definition, renders one or more body parts inoperable, and

2. Has NO recognized health benefits whatsoever.

3. Has NO legitimate medical purpose outside its basis in religion.

And I'll throw at you caudal tails and polydactyl phalanges. The removal of which is so routine that I'd honestly be surprised if the hospitals even ask parental consent. Put this up to Cass' standards. Is the removal of a caudal tail medically necessary? Does the removal of an extra thumb render that body part (the extra thumb) inoperable? Does it have no recognized health benefits to sever an extra toe? The only element it doesn't actually have anything to do with anything is that removal of extra digits or caudal tails isn't religiously motivated.

And yet, that's precisely the controversial part. For the law to claim that a medical procedure CANNOT be legitimate if it's religiously motivated runs smack dab into the First Amendment. I really hate to point this out, but the First Amendment is not a call to secularism, but instead is a call AGAINST governmental favoritism. And that would INCLUDE preventing the government from favoring atheism.

YES I think FGM is barbaric. I seriously doubt anyone here thinks it's harmless and should be practiced by everyone. The trouble Grim, Yu-Ain and I am having is twofold. First, it's the FEDS claiming jurisdiction on what is clearly not an issue covered by their existing Constitutional Powers, and secondly that they're handwaving the First Amendment away saying that it doesn't apply. And I could take that second contention that it doesn't apply seriously ONLY if they simultaneously banned circumcision (which I am NOT advocating). Because then they'd be treating the removal of tissue from a non-consenting child equally. But they're not. They're saying "this one is medical practice, this one is assault." YES they're different by miles of degree, but LEGALLY the Feds should be unable to discriminate.

And finally, I really need to disagree with the hostess on the concept that circumcision "Has a legitimate medical purpose that has no basis in religion". It is ENTIRELY based upon Talmudic law and the hygiene reasons were later given to provide justification. You cannot seriously believe the "health benefits" were the driving factor for the bris. Yes, there CAN be hygienic benefits to being circumcised. But was I ever given a choice? Or was that decision taken from me and irretrievably lost? Please don't misunderstand, I do not care about a scrap of tissue I never missed, nor do I think it is anywhere NEAR the scale of horror that FGM represents. BUT... I do stand with Yu-Ain and Grim in opposing an arbitrary power grab by the Federal government which in effect legitimizes Federal tyranny.

Posted by: MikeD at June 3, 2010 12:53 PM

Put this up to Cass' standards. Is the removal of a caudal tail medically necessary?...Does it have no recognized health benefits to sever an extra toe?

Necessary? No. Not really. But beneficial? Maybe. In many cases it does have a health benefit. The extra digits are often nonfunctional to start with and can become quite irritated. My dad, who is naturally right handed had to learn to be left handed because of the pain that the extra (pinky) finger on his right caused when writing. It was small, about the size of a skin tag, but it had a nail and everything. It was never removed but over the years it has essentially abbraded off (rather painfully he says). So when my nephews were born with extra digits, my sister had them removed professionally.

Does the removal of an extra thumb render that body part (the extra thumb) inoperable?

Well, tautologically, yes. Just as circumsision renders the foreskin inoperable. But does it render the hand inoperable? No, and as above it might actually improve functionality of the hand. Or not. Antonio Alfonseca seems to have gotten on just fine keeping his 6 fingers.

Posted by: Yu-Ain Gonnano at June 3, 2010 01:31 PM

A few points:

1. I should not have said, "has no basis in religion". That was imprecise and in my hurry I didn't word it correctly. What I meant was, "it is not inseparately tied to religion".

What I mean by this is that I don't think you can say that the vast majority of parents who get their baby boys circumcised do it for religious reasons.

It is standard medical practice in the US and parts of Europe.

Like Yu-Ain, I don't think religion enters into it b/c I don't think religion is a "good enough" reason to maim a helpless baby. I just don't.

What if one's religion required the sacrifice of one's firstborn? Are we so enamored of Constitutional purism that we would say government has no legitimate interest in preventing such acts of "faith"?

FWIW, I would not describe circumcision as "maiming". I think the two practices are categorically different for the reasons I have already set out.

Normally I would think that this type of issue should be governed by state law but my point was more to ask whether babies (live babies, not unborn ones) have any rights under the Constitution? Or do they only have a right not to be maimed or murdered if that right is granted by the States?

Posted by: Cass at June 3, 2010 01:33 PM

Like Yu-Ain, I don't think religion enters into it b/c I don't think religion is a "good enough" reason to maim a helpless baby.

Kinda. My actual position is more akin to this:

If any other non-medical reason is good enough, why *isn't* religion a "good enough" reason?

If *only* medical reasons are "good enough" then your religion never enters the discussion.

The fuzzyness is in ensuring that your decision for what procedures can carry non-medical reasons and which ones can't aren't based upon post-hoc rationalizations to give you the religious result you want. That is, we like Christians and Jews so their procedures can carry non-medical reasons (and we'll justify it by hygiene, cosmetic reasons, etc.) while we don't like others so their procedures must carry only medical reasons.

Posted by: Yu-Ain Gonnano at June 3, 2010 01:52 PM

This is likely to come up more and more in the future.

Look at the growing popularity of plastic surgery.

What if parents of newborns say, "Dayum! That kid is ugly but a little nip and tuck would fix that right up."

This isn't as far fetched as it seems. I am more interested in the question of whether kids have any rights at all in this regard and no one seems to want to address that issue :p

Posted by: Cass at June 3, 2010 02:39 PM

This isn't as far fetched as it seems.

No, it's certainly not. Which is part of the reason I introduced polydactyly which may (or may not) be simply a cosmetics issue.

Posted by: Yu-Ain Gonnano at June 3, 2010 02:43 PM

OK, I'm willing to buy the argument that FGM should be banned outright, on the following terms:

1) The child also has religious freedom, and,

2) Is not yet old enough to make a determination that she accepts this religion and its practices.

That does require recognizing FGM as a religious practice, though; and, however categorically different the practices may be in effect, it does also appear to be an argument for banning male circumcision. Which, as I started by saying, is fine with me too.

Posted by: Grim at June 3, 2010 03:29 PM

What if one's religion required the sacrifice of one's firstborn? Are we so enamored of Constitutional purism that we would say government has no legitimate interest in preventing such acts of "faith"?

Absolutely not. I'm not advocating a position of "First Amendment trumps all". In fact, I think Grim had the winning argument with:
The child also has religious freedom, and,

2) Is not yet old enough to make a determination that she accepts this religion and its practices.

However, I do not see a reason other than "we want to" for why it takes the federal authorities to pass a law banning FGM. I have zero problems with states doing so. There is no REASON for the feds to get involved. "But what if someone crosses state lines to get a proceedure done to their child which is illegal in their home state." We gee, I dunno... what do we do now about it? Nothing? Oh yeah, because we've long ago accepted that different states can have different laws. A law opposing something as clearly barbaric as FGM should have no problem passing in any statehouse. And all the Supreme Court need to in the event of a challenge is say, "Sorry, you can't force a lifelong change on a minor in accordance with your First Amendment protected religious practices if it would violate the minor's First Amendment rights."

And again, if an adult woman seeks out "female circumcision" after she is legally able to give informed consent, then that's her decision. I think it's horrible, but people do horrible things to their own bodies all the time. That's their right. But NO ONE has a right to remove the flesh of a unconsenting minor (and by definition, minors cannot give consent). Religious reasons or not. Does that ban male circumcision as well? Oh well. If you're too lazy to keep yourself clean, you can live with it or get a circumcision as an adult.

What if parents of newborns say, "Dayum! That kid is ugly but a little nip and tuck would fix that right up."
I know folks that consider it child abuse to pierce the ears of baby girls. I'm undecided. From a legal standpoint, there's no real difference between doing that and getting your eight year old daughter's ears pierced or letting a sixteen year old get her ears pierced. A minor is a minor is a minor under the law.

Posted by: MikeD at June 3, 2010 04:01 PM

Actually, there is a difference between doing it to a minor, and letting her elect to have it done. The latter issue doesn't even come up with a baby; but it might come up with an eight year old.

Posted by: Grim at June 3, 2010 04:08 PM

There is no REASON for the feds to get involved. "But what if someone crosses state lines to get a proceedure done to their child which is illegal in their home state." We gee, I dunno... what do we do now about it? Nothing?

Not exactly correct. This, in fact, was the entire purpose of the 14th amendment. That there are some things that the states do not get to decided on their own about what is legal. In fact there's a 14A case being decided by SCOTUS by the end of this month.

Posted by: Yu-Ain Gonnano at June 3, 2010 04:49 PM

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